CALL US NOW ON 01494 422626
The dawn of a new year is traditionally a time for a general renewal or refresh, and this year is particularly so for UK trade marks. The start of 2026 marks the final disconnection between the UK and the EU’s trade mark systems…
It’s been a long time coming. It was in 1996 that the EU’s trade mark registry came into being, in the form of the snappily-titled “Office for Harmonisation in the Internal Market (Trade Marks and Designs)”, grafting a supranational registration process uncomfortably on top of the various national registration systems and creating an alternative route to registration in respect of the UK. I remain of the view that the precise detail of how the EU’s system was implemented and how it interlinked with the 28 national systems of the EU states was possibly the worst thing to happen to the UK’s trade mark system in living memory, but that is just a personal view and I know many others welcomed it. Most of those details flowed from the not-so-subtle hint in the office’s name – it was never intended as just a trade marks registry, it was always a political project aimed at harmonising the internal market within the EU member states.
We started the process of leaving the EU ten years ago, in 2016. I can hardly believe it has been that long. The decision was made to leave in our referendum in June that year, but that just started the real political arguments around exactly what “leave” meant. Memorably, our then Prime Minister Theresa May solved that for us all by declaring “Brexit means Brexit”; despite the undeniable clarity of that pronouncement, she was unable to secure a consensus as to exactly what the Brexit agreement should say, and we didn’t actually reach an agreement with the EU until Boris Johnson was elected in 2019 under the banner of “Get Brexit Done”. An agreement was finally reached on 30 January 2020 which allowed for an implementation period ending on 31 December 2020 (UK time), at which point the UK would leave and finally break its ties with the EU…
Well, almost. There was one small tie still left in place. Remember that parallel system of registration? All those EU registrations obtained between 1996 and the end of 2020 were copied and pasted onto the UK trade marks register, and became independently-registered UK rights, valid under UK law and subject to the usual UK requirements. That included the possibility of revocation for non-use – UK law allows that if a mark has not been used in the UK in respect of the goods or services for which it is registered, then the registration can be struck off. It would have been somewhat unfair to have created a corresponding UK right and then immediately revoke it on the grounds that it had never been used in the UK, so the withdrawal agreement allowed use in the EU prior to 31 December 2020 to be admissible evidence in support of the validity of the registrations obtained in this way.
Now, finally, that tie is gone. The window of admissible use, i.e. the 5 previous years, no longer covers the period prior to our departure. So the marks transposed onto the UK Register by the Withdrawal Agreement must stand on their own two feet; they can no longer be supported by past use outside the UK. The UK’s trade marks system is now, finally, purely under UK control.
For those of us whose concerns with the structure and organisation of the EU began in 1992 with the Maastricht Treaty, it has been a long haul.
Anyway, I hope you all had a lovely break and are back at work refreshed and raring to go. If there is a former EU mark standing in the way of your business plans, let me know and I’ll see what we can do about it.
Best wishes,
Michael
